Category: DUI Case Law

OVI, DUI, OMVI, DWI, Drunk Driving – Is There Any Difference?

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OVI, DUI, OMVI, DWI, Drunk Driving – Is There Any Difference?

ovi, omvi, dui, dwi, drunk drivingSpoiler Alert: They all mean the same thing: operating a vehicle under the influence of drug, alcohol or a combination of drugs and alcohol, in violation of Ohio Revised Code 4511.19.

Colloquially, the most common way to describe drunk driving is by referring to it as a DUI. The term DUI is universally understood and used by most national news organizations. DWI (driving while impaired) is also a ubiquitous term used to describe drunk driving. More info

presumption of innocence

Presumption of Innocence? Not For OVI

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The History of The Presumption of Innocence

The presumption of innocenceEi incumbit probatio qui dicit, non qui negat, is the principle that one is considered innocent unless proven guilty. It dates back to the very foundations of western jurisprudence. The sixth century Digest of Justinian provides, as a general rule of evidence:”Proof lies on him who asserts, not on him who denies.” The presumption requires that the prosecution has the obligation to prove each element of the offense beyond a reasonable doubt and that the accused bears no burden of proof. More info

Admitting OVI Blood Tests Made Easier By Ohio Supreme Court

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policing for profitIn State v. Baker, Slip Opinion No. 2016-Ohio-451 the Ohio Supreme Court ruled on the admissibility of a blood sample in a case where a trooper left the sample unrefrigerated in his patrol car for over four (4) hours.  The Ohio Supreme Court opinion reversed a lower court decision that ruled because the state did not strictly comply with the refrigeration requirement, the sample could not be used against the defendant in connection with a 2011 OVI charge that arose from accident that killed a pedestrian.

While giving lip service to the fact that strict compliance with the refrigeration rule is preferable, the Court recognized logistical issues of gathering and submitting samples may make strict compliance unrealistic in all cases. Citing State v. Plummer, where the Court in 1986 held that the failure to refrigerate a urine sample for four hours did not render the test results inadmissible, and State v. Mayl, a 2005 decision that cited Plummer, the Court determined that the failure to refrigerate a blood sample for as many as five hours substantially complied with the refrigeration requirement, permitting the sample to be used as evidence. The failure to refrigerate the defendant’s specimen for four hours and 10 minutes substantially complied with the rule and did not make the test results inadmissible per se.

In this case, the court clarified the procedure for admitting blood-alcohol test results into evidence as established in the Court’s 2003 State v. Burnside decision.  Burnside states that to challenge a blood test result, the defendant must file a motion to suppress.  After the filing of a motion to suppress it becomes the responsibility of the state to demonstrate it substantially complied with the administrative rule. If the state proves substantial compliance, the burden then shifts back to the accused to show the failure to strictly comply made the test unreliable and prejudicial.

A dissenting opinion, written by  Justice William M. O’Neill acknowledge that strict compliance is not always realistic or humanly possible, but wrote the majority decision makes the substantial compliance standard too low for such serious cases. He stated the decision allows for the rule to be ignored.  This blog has long argued that the “substantial compliance standard” is a fast-eroding standard that allows the court to admit evidence if the police try their best, or demonstrate a good faith effort, effectively shifting the burden of proof from the government to the defendant.

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Ohio Supreme Court Address Juvenile Prior OVI Offenses

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In State v. Bode, 144 Ohio St.3d 155, 2015-Ohio-1519, the Ohio Supreme Court decided an issue affecting juveniles and the ability of the state to enhance a DUI charge based on prior juvenile adjudications.

As a juvenile, the defendant was arrested for violating an equivalent offense 4511.19(A)(1)(a), colloquially referred to as a DUI charge. He was not represented by counsel. By 2011 Bode had been convicted of three more DUI charges. In 2011, Bode was indicted for and convicted of felony DUI charges. The cases were felonies because of Ohio enhancement statute R.C. 4511.19(G)(1)(d), which relied on his prior juvenile offense to enhance his charged to a felony. In Ohio, if you accumulate “five or more” DUI offenses within a twenty (20) year period, you may be charged with a felony of the fourth degree.  Here, the government was attempting to use his juvenile offenses as one of the “five or more.”

The defense argued that because he did not waive his right to counsel at his 1992 juvenile adjudication, the state should not be allowed to use that disposition against him. In a narrow 4 to 3 decision, the Ohio Supreme Court agreed. Relying heavily upon well-recognized Due Process cases, the court did not accept the state’s argument that since he was not incarcerated in the 1992 adjudication, he should not have been afforded counsel. The opinion, in dicta, also shows continued life for the collateral attack of a prior sentence under the State v. Brooke, 113 Ohio St.3d 199, 2007-Ohio-1533 analysis.

This case highlights the necessity of hiring an experienced and credentialed attorney who practices in the field of DUI defense. At DaytonDUI, Charles M. Rowland II has over 20 years experience helping people accused of driving under the influence. Call today!

Proving Prior Convictions (Evidence Rule 902)

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Just how hard is it for the prosecution to prove prior convictions in OVI cases?prior convictions

The government has the burden of providing a foundation that the documents proving prior convictions should be relied upon. The Ohio Rules of Evidence, Evid. Rule 902, provides that extrinsic evidence of authenticity, as a condition precedent to admissibility, is not required under three (3) specific circumstances:

  1. Domestic Public Documents Under Seal: These can include documents from other states, districts or political subdivision.
  2. Domestic Public Documents Not Under Seal: These include documents without a seal, but bearing some attestation that the signatory had the authority to sign the document.
  3. Certified Copies of Public Records: Documents that are authorized by law to be recorded or filed and are actually recorded or filed in the appropriate public office.

The reported cases set forth in Ohio Driving Under the Influence Law, Weiler & Weiler, 2013-2014 ed., sec 11:9, p. 458, demonstrate that courts have proven lenient in allowing the government to use these documents. (See State v. Lewis, 2011-Ohio-911, allowing two “TRAFFIC CASE INFORMATION HARDCOPY” documents complied with Evid. R. 902; State v. Thompson, 2009-Ohio-314, interpreting a prior case that held the state had to prove with a certified conviction was “non-binding dicta” and allowing in the proof, and State v. Pisarkiewicz, 2000-Ohio-6609, wherein the court allowed faxed copies.

If you have prior convictions and face enhanced penalties, it is vital that you have an experienced DUI attorney on your side. Dayton DUI, “All I do is DUI defense.”